Sack Goldblatt Mitchell LLP

Prior to the coming into force of Bill 168 amendments to the Occupational Health and Safety Act), there were three main possible options for addressing harassment in the workplace:  1. The Ontario Human Rights Code  2. The collective agreement  3. Employer policy

1. The Ontario Human Rights Code Section 5 (2) provides for the right of employees for freedom from harassment: “5 (2)Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.”

The Code defines harassment as follows: “10 (1). ‘harassment’ means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”

The Code has separate provisions regarding harassment in employment because of sex:  “7 (2) Every person who is an employee has a right to freedom harassment because of sex by his or her employer or agent of the employer or by another employee.

Some collective agreements, including some faculty association collective agreements, specifically prohibited personal or psychological or workplace harassment or abuse of authority.

In addition, in recent years, many employers, especially in the broader public sector, began to develop civility policies or respectful work environment policies or abuse of authority policies that expressly or by implication prohibited bullying or harassing behaviour in the workplace, not limited to behaviour related to grounds set out in the Human Rights Code.

 Sometimes the employer policies provided for an investigation procedure similar to the procedure for internal human rights complaints.  In unionized environments, it is also usually possible to grieve non-compliance with employer policies.

 In Ontario, for many years we have had the Occupational Health and Safety Act, aimed at requiring employers to provide a safe and healthy working environment for workers. However, there was nothing explicit in the Act pertaining to psychological or workplace harassment or bullying.

 However, workplace experts increasingly perceived the need for a coordinated response to workplace harassment/abuse/ bullying that was not based on Human Rights Code grounds.  Some jurisdictions (such as Quebec) passed legislation specifically prohibiting workplace or psychological harassment.

 Further, in a 2004 decision, a prominent Ontario arbitrator concluded that the OHSA rqeuired employers to exercise their managerial functions in a manner consistent with the OHSA. In that case, the facts were summarized by the arbitrator as follows:

“I conclude Mr. …abused his authority and harassed Mr. S… by publicly ordering him back to work when others were not so ordered, by unjustifiably complaining about his work, by restricting his use of the phone when others were not so restricted, by refusing to allow him to leave early for his vacation when others were so allowed, by attempting to discipline him when it wasn’t warranted and by making demands on him with respect to his work performance which were not demanded of others. “

 Among other findings, the arbitrator concluded that this violated the OHSA including the obligations under ss. 25 and 27 on employers to provide information, instruction and supervision to a worker to protect the health or safety of the worker; and to take every precaution reasonable in the circumstances for the protection of a worker.  As a result, the arbitrator found the employer to have violated the management rights clause of the collective agreement.

 This arbitration award was controversial, but reflective of evolving thinking in academe and the labour relations field about harassment and bullying in the workplace.

A package of amendments to the Occupational Health and Safety Act (known as Bill 168) came into effect in June The amendments focus primarily on prevention of harassment and violence in the workplace through:  Risk assessment  Creation of policies and Implementation of programs  Expanded right of work refusal  Reasonable precautions against domestic violence

Definitions:  “workplace harassment” is defined in s.1 of Bill 168 as:  “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.”  test from HRTO:  Generally must be a pattern of conduct (not a single incident)  Objective test: would a “reasonable person” in the shoes of the complainant find the conduct objectionable

The definition of “workplace harassment” in Bill 168 includes:  a single isolated incident that offends and upsets a worker true / false?  well-meaning conduct that is not intended to harm or demean anyone true / false ?  jokes or other remarks that are not specifically directed at any particular worker true / false ?  persistent rudeness and/or irritability of a supervisor toward workers true / false ?  personality conflicts between co-workers that create tension and unpleasant feelings true / false ?

 New Obligations on Employers: 1)conduct an assessment of the risk of violence in their workplace;  conduct re-assessments of the risk of violence in the workplace, as required; 2)develop and maintain written policies relating to workplace violence and harassment;  post the policies in the workplace;  conduct annual reviews of the policies;

(continued)  Employers are required to: 3)develop programs for implementing the policies; 4)train employees with respect to the policies and programs; 5)inform employees who are at risk of workplace violence from a person with a history of violent behaviour;

Bill 168 requires employers to develop policies with respect to workplace harassment and workplace violence. The policies must be in writing. true / false ? The policies must be posted in the workplace. true / false?

(2) Policies “s (2)The policies shall be in written form and shall be posted at a conspicuous place in the workplace. (3)[This] does not apply if the number of employees regularly employed at the workplace is five or fewer, unless an inspector orders otherwise.”

Under Bill 168,  An employer must provide workers with a copy of its harassment and violence policies true / false?  An employer must provide training to workers with respect to its harassment and violence policies and programs true / false ?

Under Bill 168,  A worker in Ontario will have the right to refuse to work if she or he has reason to believe that she or he is likely to be exposed to workplace harassment true / false?

 The right to refuse unsafe work does not extend to workplace harassment, but does extend to workplace violence:  “s. 43 (3) A worker may refuse to work or do particular work where he or she has reason to believe that  (b.1) workplace violence is likely to endanger himself or herself; “

 Bill 168 did not prescribe a timetable for compliance. However, most employers now have policies and procedures in place regarding workplace harassment.  Nothing in the legislation precludes bargaining collective agreement language in this regard.  Some employer policies go beyond the definitions in Bill 168 to explicitly include “bullying”.

 Complaint under employer workplace harassment policy.  Complaint under employer human rights policy.  Grievance (depending on the issue and the wording of the collective agreement).

Discussion re which process to invoke (if any!) and when. Different contexts may require different solutions. For example:  Annual evaluation and tenure/promotion  Student evaluation  Workload  Pay  Serious personality conflicts